Employment Law Year in Review. Business owners and managers need to keep track of the employment laws that may impact their business. This year there are changes and newly added state and federal employment laws. Although this article does not cover each revised or added law, here is an overview of some of the more important changes.
Sexual Orientation and Gender Identity
Two bills were introduced to the Nebraska legislature that sought to prohibit discrimination based on sexual orientation and gender identity in employment. Neither advanced through the legislative process to become Nebraska law. However, employers should assess whether they are subject to a local or federal law that prohibits such discrimination.
For example, the U.S. Supreme Court held that the prohibition against sex discrimination under Title VII of the Civil Rights Act includes a prohibition against sexual orientation or gender identity discrimination.
Generally, an employer must comply with Title VII if it has fifteen or more employees on its payroll. The Omaha municipal code also bans employers from discriminating on the grounds of sexual orientation or gender identity in connection with employment decisions. Generally, an employer must follow that local law if it has six or more employees.
Nebraska Child Labor Laws
This year, the Nebraska legislature passed a law that increases penalties for state child labor law violations and broadened the Nebraska Department of Labor’s ability to investigate and subpoena employers suspected of violating state child labor laws. Among other things, state child labor laws require an employment certificate for workers under age 16 and restrict the hours that workers aged 14 or 15 may work (the federal child labor laws impose stricter hours restrictions). The penalty for a violation is now a Class I misdemeanor, which is punishable by up to 1 year of prison, a $1,000 fine, or both. In some instances, the penalty may apply to each day the violation continues after the employer is given notice of the violation.
In addition to auditing your compliance with Nebraska child labor laws, this is a good reminder to review your compliance with federal child labor laws and regulations as well. Unlike Nebraska law, the federal child labor
laws also include restrictions on the type of work some children workers can perform, referred to as hazardous work orders. Keep in mind that federal child labor laws may allow for much higher penalties than state law.
Religious Accommodation Requests Subject to Heightened Standard
Title VII prohibits discrimination based on religion unless an employer can prove that it is unable to reasonably provide a religious accommodation to an employee without “undue hardship” on the conduct of the business. In the past, courts allowed an employer to reject a religious accommodation request if imposing the accommodation meant the employer would have to bear more than a “de minimis cost”. However, this year, the U.S. Supreme Court issued a decision in Groff v. DeJoy that rejected the “de minimis cost” test. Now, employers cannot refuse to accommodate an employee’s request for religious accommodation unless they can show that it would result in a “substantial increase” in the cost of performing its particular business.
This decision does not change the fact that an employer may provide an alternative accommodation other than the one preferred by the employee, so long as it is reasonable.
Pregnant Workers Fairness Act (PWFA)
Generally, the PWFA applies to employers who have fifteen or more employees. It is a new federal law that went into effect on June 27, 2023, and its corresponding regulations went into effect on June 18, 2024. The PWFA requires employers to provide a reasonable accommodation to a qualified employee’s or applicant’s known physical or mental limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions unless the accommodation will cause the employer an undue hardship. The final rule identified a number of examples of accommodations that will almost always be found to be reasonable and not pose an undue hardship on the employer, such as: allowing an employee to keep water near and drink, as needed; allowing an employee additional restroom breaks; and allowing an employee whose work requires standing to sit and vice versa, as needed. Other possible reasonable accommodations may include schedule changes, remote work, parking modifications, light duty, or temporarily suspending one or more essential functions.
Form I-9
The U.S. Department of Homeland Security’s Citizenship and Immigration Services issued a new Employment Eligibility Verification form, commonly referred to as Form I-9, that employers had to start using as of November 1, 2023. This is a good opportunity to perform an internal audit of your Form I-9 procedure. An employee must complete Section 1 of the form no later than the first day of employment and must provide the required documentation within three business days after the employee’s first day of employment.
FTC Ban on Non-Competes, and New Federal DOL Overtime Rule
Reminder to review our recent article that covered updates to both of these federal laws. Both laws are currently being challenged in various lawsuits, some of which seek a preliminary injunction from the court to
delay the effective date of the law. However, no court has issued an injunction. Therefore, until a court rules otherwise, employers must comply with the first wave of salary threshold increases under the DOL Overtime Rule beginning July 1, 2024.
If you have questions about employment Law, please contact AKC Employment Law Attorneys, Julie Ryan or Harvey Cooper at 402.392.1250.